Appeals abound over Chancery Court ruling on Stoltz

Wednesday

Aug 28, 2013 at 3:33 PM

New Castle County Council will use outside counsel to represent its interests in a cross-appeal of a June Chancery Court decision that the body's 2011 commercial rezoning vote at Barley Mill Plaza was invalid.

Council voted 10-2 at Tuesday's executive committee meeting to use the outside counsel. The council joins the developer, Stoltz Real Estate Partners, in the appeal.

Jesse Chadderdon

New Castle County Council will use outside counsel to represent its interests in a cross-appeal of a June Chancery Court decision that the body's 2011 commercial rezoning vote at Barley Mill Plaza was invalid.

Council voted 10-2 at Tuesday's executive committee meeting to use the outside counsel. The council joins the developer, Stoltz Real Estate Partners, in the appeal.

Stoltz, which sought the rezoning at the former DuPont office complex so it could construct a 1.3-million-square-foot regional shopping area there, maintains that county council was correct in approving the rezoning, which cleared the way for the project.

But they're not the only parties unsatisfied with the decision rendered by Vice Chancellor Sam Glasscock.

By filing a cross-appeal, the plaintiffs in the case – the Save Our County citizens' group – is seeking further clarity from the court as to what kind of traffic information should be made public and at what point during the process. County Executive Tom Gordon's administration is allied with Save Our County in the case, splitting from council on the issue.

Glasscock ruled the rezoning invalid because he said Councilman Bob Weiner's tiebreaking vote in favor of the rezoning was "arbitrary," because Weiner (R-Brandywine West) was not provided with traffic study data he requested prior to the vote – information Glasscock said any council person should have been entitled to upon request.

But Glasscock stopped short of saying the traffic data was required to be made public as part of the process, which is what's prompting the Save Our County appeal.

Weiner and Councilman Penrose Hollins (D-Wilmington North) were the only two council members to vote against the council's use of an outside attorney. In fact, Weiner said he was considering obtaining his own counsel because his interests in the case were not in line with the majority of county council.

"Delaying traffic data to the public and elected officials until the time of record plan approval makes that data useless to the public," Weiner said.

It's unclear when the Delaware Supreme Court may hear the appeals.

How we got here

Stoltz first proposed redeveloping Barley Mill Plaza in 2007. At that point, a 2.6-million-square-foot mixed-use project was planned for the site, featuring high-rise apartment buildings, a hotel, several restaurants and a multitude of shops. The public outcry over it and other plans unveiled by Stoltz in the region was significant, prompting dozens of public meetings where the projects were vetted.

In 2010, then-County Executive Chris Coons announced a compromise between Stoltz and Citizens for Responsible Growth – the most active citizens' organization at that point in the process. The compromise called for a scaled-back version of the Barley Mill proposal, and also eliminated plans for a high-rise apartment building proposed for Greenville Center on Kennett Pike.

While CRG was pleased with the deal, other residents and civic leaders were not and the Save Our County group was born.

When Coons left his post as county executive for the U.S. Senate, Council President Paul Clark transitioned into the county's top job. At that time, Clark's wife, Pam Scott – who had been Stoltz' principal attorney through the process – stepped down to avoid the appearance of a conflict of interest.

For some, Scott's withdrawal from the process came too late.

Gordon hammered Clark during last fall's campaign over his wife's involvement in the Barley Mill project and Gordon said he believed the council erred when approving the rezoning.

Two months after his election, Gordon announced that the county would not contest Save Our County's appeal, and instead would join them in seeking to overturn the rezoning. Essentially, the county was arguing against its previous actions in Chancery Court. Gordon celebrated Glasscock's June ruling as a victory, though what ultimately becomes of Barley Mill Plaza certainly remains unsettled.

Greenville Center

The aforementioned Greenville Center plan was approved unanimously by council Tuesday night with little fanfare.

The project, which had once been a lightning rod because of the inclusion of a 12-story residential tower, was approved with no public opposition.

The recorded plan calls for an additional 35,949 square feet of development on the parcel. A two-story commercial/office building will replace the Wells Fargo building at the site, while another building will be added along Kennett Pike, at the corner of Buck Road.